Citation Nr: 22012015 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-56 419 DATE: March 2, 2022 ORDER Entitlement to basic eligibility for Department of Veterans Affairs (VA) benefits is denied. FINDINGS OF FACT 1. The appellant does not have verified service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces during World War II. 2. The appellant has been provided a meaningful opportunity to challenge his service record with the relevant service department. CONCLUSION OF LAW The criteria required to establish veteran status for basic eligibility for VA benefits have not been met. 38 U.S.C. §§ 101(2), 107; 38 C.F.R. §§ 3.1, 3.7, 3.40, 3.41, 3.203. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks entitlement to VA benefits based on service in the Philippine Commonwealth Army, to include the organized guerrilla forces, during World War II. The matter comes before the Board of Veterans' Appeals (Board) from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A Board hearing was held before the undersigned Veterans Law Judge in October 2018, and a transcript of the hearing is of record. This matter was previously remanded by the Board in March 2019 and July 2021 for additional development. The agency of original jurisdiction (AOJ) has substantially complied with the remand instructions. While the Board is sympathetic to the appellant, the appeal must be denied for the reasons discussed further below. Certain benefits, including disability compensation, may be authorized in limited circumstances for individuals with service in the Philippine Commonwealth Army, including certain organized guerilla forces, in the service of the United States Armed Forces. See 38 U.S.C. § 107; 38 C.F.R. § 3.40. These circumstances include when an individual is called into service of the Armed Forces of the United States by orders issued from the United States Army pursuant to the Military Order of the President of the United States dated July 26, 1941. The circumstances of individuals with guerilla service include service under a commissioned officer of the United States, or under a commissioned officer of the Philippine Commonwealth Army recognized by and cooperating with the United States Armed Forces. In this case, VA received the appellant's application for service-connected disability compensation in December 2015. See December 2015 VA Form 21-526EZ. In support of his claim for VA disability compensation benefits, the appellant submitted affidavits from L.T., C.T. and G.D., who attested to knowing that the appellant was inducted into the "Bolomen," and was injured transporting supplies for the Army during World War II. Additionally, the appellant submitted a certificate of recognition for his service during World War II. The certificate notes that the appellant was inducted under the 121st Infantry Division, "L" Co., United States Army Forces in the Philippines (USAFIP), North Luzon (N.L.), as a member of the Bolomen. See also December 2015 correspondence to the Administrator, Philippine Veterans Affair Office (PVAO). The certificate indicates the appellant was shot during the encounter at Bessang Pass and continued his military service with the Armed Forces of the Philippines after the war. See also August 2005 Certification from the Armed Forces of the Philippines, Office of the Adjutant General (documenting service in the Philippine Air Force from June 1948 to April 1968). The appellant submitted photographs of a Japanese bayonet that he captured, two military medals for his service, and a photograph of his injury from the gunshot wound. In an undated statement associated with the claims file in September 2015, the appellant indicated that he was recruited by Philippine guerilla forces in February 1943. See also statement from the appellant received by VA in March 2016. The appellant reported that he performed several duties in the guerilla forces as a Boloman, including security and acting as a messenger. See also correspondence from the appellant dated July 30, 2015. The appellant reported that he was injured by a gunshot wound while transporting supplies in May 1944. The appellant reported that he received treatment at a U.S. military treatment facility on Camp Spencer for his gunshot wound. The appellant indicated that he was released from service after he was discharged from the U.S. military hospital in June or July 1944, but never received any official military release documents and was never assigned a military service number. The appellant also submitted correspondence from the National Personnel Records Center (NPRC) dated October 19, 2009. NPRC notified the appellant that his name was not shown in the official records and archives on file at NPRC, which list members of the Philippine Commonwealth Army, including the recognized guerillas, in the service of the United States Armed Forces during World War II. In Congressional correspondence associated with the claims file in March 2016, the appellant indicated that he was aware that his service as a Boloman was not in the service of the United States Armed Forces during World War II because he was not given a military service number. The appellant indicated that he hoped his services, which almost cost his life, would be recognized by the U.S. government. During the October 2018 Board hearing, the appellant testified that he served under Philippine Army leaders. The appellant reported that he was treated at a U.S. Army hospital following the gunshot wound injury at Bessang Pass, and that up until that injury, his service as a Boloman was in the service of the United States Armed Forces. Pursuant to a March 2019 Board remand, the AOJ requested verification of the appellant's service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. The AOJ provided copies of the appellant's correspondence describing his service, affidavits, citations, and certificate of recognition documenting his service as a Boloman with the 121st Infantry Division, "L" Co., USAFIP, N.L. See September 2020 VA 21-3101. In March 2021, the NPRC (as the agent of the National Archives and Records Administration (NARA)) responded to the request for verification of the appellant's service. See also January 2016 Memorandum of Agreement (MOA) between the Department of the Army and NARA (delegating the responsibility of verifying military service to NARA). NPRC reported that unit rosters corresponding to the information submitted by the appellant did not include the appellant's name among the list of soldiers whose service in support of the United States Armed Forces was verified. Pursuant to a July 2021 Board remand, the appellant was afforded an opportunity to provide documents pertaining to his military service to the Army Board for Correction of Military Records (ABCMR) in support of an application to have his military service included on the Army's reconstructed roster. See Dela Cruz v. Wilkie, 931 F.3d 1143, 1152 (Fed. Cir. 2019) (holding that, while VA can properly rely on the Army's certification as to service, VA cannot simply rely on the Army's determination that an individual's name does not appear on the reconstructed roster without giving the claimant a meaningful opportunity to challenge the Army's determination through ABCMR). In an August 2021 VA letter, the AOJ advised the appellant that VA is not able to approve his claim for VA benefits without verification of his service through the Department of the Army. See Soria v. Brown, 118 F.3d 747, 749 (Fed. Cir. 1997); see also 38 C.F.R. § 3.203. The appellant was advised to submit an application to ABCMR to request that his service be recognized. The appellant was provided information concerning the address and proper form for submitting an application to ABCMR. The AOJ requested that the appellant submit any information or evidence concerning verification of service by the Army as soon as possible. To date, the appellant has not responded to notify VA that he has filed an application with ABCMR to correct his record, nor has he requested an extension of time in order to file an ABCMR application. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). The Board recognizes that the AOJ indicated a decision may be made on his claim within 30 days of the August 2021 VA letter. However, the AOJ waited more than the full time allotted (90 days) per the July 2021 Board remand instructions before issuing a supplemental statement of the case denying the appellant's claim for VA benefits on the grounds that he does not have qualifying service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. See January 2022 supplemental statement of the case. The Board finds that VA has afforded the appellant a meaningful opportunity to challenge the Army's refusal to verify his service through the ABCMR. The appellant has not provided any indication that he has filed, or intends to file, a petition with the ABCMR. The Board adds that the appellant is free to file a claim with VA in the future should the Department of the Army verify his service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. The Board is sympathetic to the appellant's argument that his service during World War II should be recognized by VA because the PVAO has recognized such service. However, recognition by the PVAO does not confer verification of military service from the appropriate service department or any other agency to whom the service department has delegated authority for verification of service in the United States Armed Forces. See 38 C.F.R. § 3.203; see also January 2016 MOA. The Board in no way wishes to diminish or minimize the appellant's service. However, the Board is bound by the NPRC (as the delegated agent of the service department) verification that the appellant did not have service in the Philippine Commonwealth Army, including the recognized guerilla forces, in the service of the United States Armed Forces. Accordingly, the appellant does not meet the basic eligibility requirements to establish entitlement to VA benefits, and the appeal must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). J. W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Mask, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.